Australian Competition and Consumer Commission v Telstra Corporation Limited ACN 051 775 556 [2009] FCAFC 68

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Telstra Corporation Limited ACN 051 775 556 [2009] FCAFC 68

APPEAL – appeal in respect of reasons which arguably formed part of the reasoning which supported orders made by way of judicial review at first instance – the primary Judge quashed a determination made by the ACCC pursuant to s 152CP of the Trade Practices Act 1974 (Cth) and remitted the matter for hearing and determination according to law – the primary Judge erroneously construed s 152AQB(2) of the Trade Practices Act 1974 (Cth) – appeal allowed – the appropriate remedy on appeal was to vary the order for remitter so as to make clear that the decision-maker (the ACCC) was to apply the Full Court's interpretation of s 152AQB(2) insofar as that section was relevant to further determinations – interpretative declaration refused TRADE PRACTICES – statutory interpretation – interpretation of s 152AQB(2) of the Trade Practices Act 1974 (Cth) – the ACCC was obliged to make a determination setting out some model terms and conditions in relation to access for defined core services in the telecommunications industry but was not obliged to make a comprehensive set of such terms and conditions governing all relevant matters – the primary Judge erred in holding that the model terms and conditions contemplated by s 152AQB(2) had to be exhaustive – appeal allowed Trade Practices Act 1974 (Cth), Pt XIC, ss 152AB(1), 152AQA, 152AQB, 152AY(2)(a), 152BJ, 152BK, 152BS, 152BV, 152BW, 152BX, 152CM(1) and 152CP Acts Interpretation Act 1901 (Cth), s 15AB, s 33(3A) Telecommunications Competition Bill 2002

Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 varied Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 applied CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272 applied Re Bolton; Ex parte Beane (1987) 162 CLR 514 referred to Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 cited